Whose "Best Interests" Served In Custody Wars?

Against my better judgment, I have stumbled into yet another post-judgment divorce case, this time, on behalf of a former client, now friend, who is not seeing a couple of his children. There is a guardian ad litem, an attorney for the minor child, a therapist for the kids, a reunification therapist, lawyers for mom and dad., and, of course, mom and dad themselves. The kids have been evaluated, and re-evaluated by skilled professionals in child psychology and development.

All these adults are looking at this mess and wondering how the "best interests" of the children might be served.

It occurs to me that the standard we are applying in this case is horribly wrong. Where I grew up, nine-tenths of what professionasl ponder in these cases would have been resolved with a few swift swats to the hindquarters. Letting kids call the shots on who they will and will not see strikes me as bizarre.

Too often children who would never surface on the radar of the Department of Children and Families as in need of services of any kind become the target of lavish therapeutic regimens incident to a divorce. If the divorcing parents can’t, or will not, agree about how to raise their children, in steps evaluators, social workers, lawyers and a judge or two. Everyone strains to do what is the very best for the kids.

Perhaps we’re trying too hard.

I sat in the deposition of a reunification therapist the other day and he opened my eyes. Perhaps the best interest of the child standard, the family law equivalent of criminal law’s presumption of innocence, sets an impossibly high bar. Maybe the standard should be "good enough," the therapist mused.

Consider how little is known about the human psyche. Psychology is a new science, still struggling to get its methodological feet, and marked by the sectarian conflicts of a discipline still unsure of itself. Then consider how little we know about family dynamics. One child matures amid privation and rancor and then succeeds; another child faces the same obstacles and fails. The fault line between nature and nurture, and the imponderable role that character plays in charting one’s course, makes limning the forces actually at work in a developing child almost impossible.

In a high-conflict divorce, former lovers are transformed into hated foes, the unseen bonds of attachment now rewired and redirected, but channeling the same life-transforming, and probably near insane, passions. Children, struggling to emerge from dependency to mastery, have to fight their way through the maze their parents create in all families; in high-conflict families, these children must learn, somehow, to drink their parents' poisoned love.

I am not sure there is an expert alive able to forecast how to get these children out from under the shadows their warring parents cast. I am reminded of Tolstoy’s opening line in Anna Karenina: "Happy families are all alike; every unhappy family is unhappy in its own way."

I suspect that attempting to impose an ideal typical version of the "best interest" standard on fractured families does far more harm than we recognize. Hundreds of thousands of dollars are spent on professionals, all of whom are now on a first name basis with one another, and still, the hard cases remain on the court’s docket. While we pine away for perfection, we tolerate the expensive and perpetual failures we are powerless to cure.

Does it make sense, for example, to socialize all guardians ad litem and attorneys for minor children in a state-mandated training course, designed to introduce them to the key players in an industry manufacturing the fiction that we can really know what is best for a child? In Connecticut, any person hoping to serve in such roles must, by court rule, attend a 30 hour course intended to do just what, exactly – yield a Rolodex with all the right names and numbers?

How many families are now trapped in interminable court proceedings because the parents cannot agree about how to raise their children? What if the standard were transformed from the "best interest" to something more realistic? Why not a standard of "good enough"? That was certainly the standard applicable in my home after my father fled the responsibilities of parenthood when I was a child. I am now grateful he left; I was spared the gauntlet of officious intermeddlers the state now thrusts upon children in the vain hope to get childhood, somehow, "right."

For many, childhood is a wasteland they are happy enough to survive. That is the way it has always been. Making childhood a therapeutic wasteland of competing experts, warring parents, and fee-driven professionals seems irrepressibly sad to me. Are we serving the best interests of children, or the best interests of ourselves, we rent-a-warriors forever in search of fees?

Let’s experiment and submit conflicts about children to jury trials. We are seeking to raise new generations of citizens, after all. The common sense of juries can do no worse than the experts, or so I suggest. And these trials would cost a lot less than the protracted therapeutic purgatory we call family court. Let the parties propose their remedies to a jury of their peers, and then let the parties live with the consequences.

Asking judges to determine what’s best for children is like asking an artist equipped only with watercolors to paint the portrait of a happy family: the results will only be impressionistic, lacking resemblance to anything we actually see in the world around us, the very product of relying on expert of interpretations of the best interest standard. That’s not a very happy picture.

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.